CANADA BRIEFING TO THE UN COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION - 80th session, February 2012
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CANADA
BRIEFING TO THE UN
COMMITTEE ON THE
ELIMINATION OF RACIAL
DISCRIMINATION
80th session, February 2012Amnesty International Publications
First published in 2012 by
Amnesty International Publications
International Secretariat
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© Amnesty International Publications 2012
Index: AMR 20/001/2012
Original Language: English
Printed by Amnesty International, International Secretariat, United Kingdom
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Amnesty International is a global movement of more than
3 million supporters, members and activists in more than 150
countries and territories who campaign to end grave abuses
of human rights.
Our vision is for every person to enjoy all the rights enshrined
in the Universal Declaration of Human Rights and other
international human rights standards.
We are independent of any government, political ideology,
economic interest or religion and are funded mainly by our
membership and public donations.CONTENTS
1. Introduction........................................................................................................5
RECOMMENDATION: .............................................................................................6
2. Indigenous Peoples .............................................................................................6
A. Implementation of the UN Declaration on the Rights of Indigenous Peoples...........8
RECOMMENDATION: .............................................................................................9
B. Failure to respect and protect Indigenous peoples’ land and resource rights ...........9
i. Hul’qumi’num Treaty Group case ........................................................................11
ii. TransCanada pipeline........................................................................................12
iii. Northern Gateway Pipeline................................................................................14
RECOMMENDATIONS: .........................................................................................15
C. Discrimination in the delivery of services (articles 2(a), 5(a), (e)(iv))....................15
i. Child protection .............................................................................................15
RECOMMENDATIONS: .........................................................................................17
ii. Safe drinking water .....................................................................................17
RECOMMENDATIONS: .........................................................................................18
D. Policing and Indigenous protests (article 5(b)(c)(d)(viii)and (d)(xi)) .....................18
RECOMMENDATIONS: .........................................................................................19
E. Violence against Indigenous women and girls (General Recommendation 25; articles
2(a), 5(a), (b), (e)(iv) and 6) .....................................................................................20
RECOMMENDATION: ...........................................................................................23
F. Concerns abroad: Indigenous peoples, corporate activities and trade policy (article
2) 23
3. Refugees and Migrants ......................................................................................27A. Human smuggling (articles 2(1)(c), 5(b)and (d)(i)) ................................................. 27
RECOMMENDATION: ........................................................................................... 28
B. Non refoulement to torture or other cruel, inhuman or degrading treatment or
punishment (article 5(b) and General Recommendation XXX, para. 27)......................... 28
RECOMMENDATION: ........................................................................................... 29
C. Migrant and temporary workers (General Recommendation No XXX, para. 35; article 5
(e)(i)) ..................................................................................................................... 29
RECOMMENDATIONS: ......................................................................................... 33
E. Access to health care for undocumented migrants (article 5(e)(iv)) ..................... 34
RECOMMENDATIONS: ......................................................................................... 38
4. Racism and National Security ............................................................................ 38
A. Immigration security certificates (article 5(a)) .................................................. 38
RECOMMENDATION: ........................................................................................... 39
B. Profiling (articles 2(1)(c), 5(a) and (b))............................................................ 39
RECOMMENDATION: ........................................................................................... 42
C. Access to remedies (article 5(a) ...................................................................... 42
RECOMMENDATION: ........................................................................................... 44
D. Review and oversight (article 5(a)) .................................................................. 44
RECOMMENDATION: ........................................................................................... 45Committee on the Elimination of Racial Discrimination 5
Amnesty International briefing on Canada
1. INTRODUCTION
Canada is a nation with enormous racial and ethnic diversity; and that diversity continues to
grow. For instance, according to Canada’s 2006 Census, Indigenous (or Aboriginal) peoples
– the Inuit, First Nations and Métis peoples -- made up almost 1.2 million of Canada’s
overall population of 31.6 million. That constitutes 3.8 per cent of the population. Notably
that was an increase of 20 per cent from the 2001 Census.1 In that same Census,
Canadians reported having more than 200 ethnic origins; the proportion of the population
that was born outside the country was close to 20 per cent, the highest in 75 years; and over
five million people identified themselves as members of a visible minority group.2
Canada has, for decades, put in place a wide range of laws, policies and institutions that
recognize and protect the rights of diverse peoples and communities. Notably, the Canadian
Constitution guarantees the rights of Aboriginal peoples and includes a Charter of Rights and
Freedoms which enshrines a right to equality in section 15. Other provisions include federal,
provincial and territorial human rights codes,3 each of which is overseen and enforced by
various commissions and/or tribunals; as well as the Canadian Multiculturalism Act 1985.
Despite embracing this diversity and instituting numerous legal and policy provisions to
protect the rights of diverse communities, racism has continued to be a serious human rights
challenge for Canada. Recognizing that reality, the government launched a five-year Action
Plan against Racism in 2005. A recent government evaluation of that Action Plan found
that:
There is evidence to suggest that minorities are experiencing racism and discrimination
and recent data show that groups most at risk of being victimized by hate and bias
activity are racial/ethnic minorities and religious minorities. Evidence also suggests that
Aboriginal people, visible minorities and immigrants are particularly vulnerable to
unemployment, underemployment, lower incomes and social segregation.4
This brief builds on Amnesty International’s previous submissions to the United Nations
1
Canada: Nineteenth and twentieth periodic reports of States parties due in 2009, International
Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. CERD/C/CAN/19-20 (8
June 2011), para. 30; Population and Dwelling Counts, Statistics Canada,
http://www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-
550/Index.cfm?TPL=P1C&Page=RETR&LANG=Eng&T=101, accessed 28 October 2011.
2
Nineteenth and twentieth periodic reports, paras. 21- 22.
3
Canadian Human Rights Act, RSC 1985, c H-6; Ontario: Human Rights Code, RSO 1990, c H.19;
Yukon Territory: Human Rights Act, RSY 2002, c 116. Similar human rights statutes are in force in
other Canadian provinces and territories.
4
Evaluation of Canada’s Action Plan Against Racism, Citizenship and Immigration Canada, Evaluation
Division, December 2010, pages iv and v.
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Amnesty International briefing on Canada
Committee on the Elimination of Racial Discrimination (the Committee) at the time of its
examination of periodic reports submitted by Canada in 20025 and 2007.6 As has been the
case with previous submissions, the brief focuses on concerns with respect to the rights of
Indigenous peoples; refugees and migrants; and racial discrimination in the context of
national security laws and practices.
As a preliminary point, Amnesty International repeats the recommendation the organization
made in both 2002 and 2007 calling on Canada to make a declaration under Article 14 of
the International Convention on the Elimination of All Forms of Racial Discrimination (the
Convention), recognizing the jurisdiction of this Committee to receive individual petitions
alleging breaches of the Convention. Canada has accepted three other individual petition
procedures within the UN human rights system, namely those recognizing the competences
of the UN Human Rights Committee (CCPR), the UN Committee against Torture (CAT) and
the UN Committee on the Elimination of Discrimination against Women (CEDAW) to consider
cases. This Committee has repeatedly called on Canada to consider making a declaration
under Article 14.7 Doing so would further strengthen protection of the right of all Canadians
to be free from racial discrimination.
RECOMMENDATION:
Canada should make a declaration under Article 14 of the Convention, recognizing the
jurisdiction of the Committee to receive individual petitions alleging breaches of the
Convention.
2. INDIGENOUS PEOPLES
Although Canada is a prosperous country with an overall high standard of living8 Indigenous
peoples in Canada – Inuit, Métis and First Nations -- experience widespread impoverishment
and deprivation. United Nations treaty bodies and other Special Procedures, including this
Committee, the CCPR, the CEDAW, UN Committee on the Rights of the Child (CRC), the UN
Special Rapporteur on the right to adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination in this context, and the
5
Without Discrimination: The Fundamental Right of All Canadians to Human Rights Protection, Amnesty
International Canada (July 2002).
6
Amnesty International, Canada Human Rights for All: No Exceptions (AMR 20/001/2007).
7
Concluding observations of the Committee on the Elimination of Racial Discrimination: Canada, UN
Doc. CERD/C/CAN/CO/18 (25 May 2007), para. 28;Report of the Committee on the Elimination of Racial
Discrimination, UN Doc. A/57/18, 2002, para. 340; Report of the Committee on the Elimination of
Racial Discrimination, UN Doc. A/49/18, 1995, para. 304.
8
According to the UN Development Programme, Canada overall has the sixth highest Human
Development Index in the world. United Nations Development Programme. Human Development Report
2011 —Sustainability and Equity: A Better Future for All, p. 126.
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Amnesty International briefing on Canada
UN Special Rapporteur on the rights of Indigenous peoples, have expressed concern over the
persistent failure to substantially close the social and economic gap between Indigenous and
non-Indigenous peoples.9
In the report of his 2004 mission to Canada, the UN Special Rapporteur on the rights of
Indigenous peoples noted:
Economic, social and human indicators of well-being, quality of life and development are
consistently lower among Aboriginal people than other Canadians. Poverty, infant
mortality, unemployment, morbidity, suicide, criminal detention, children on welfare,
women victims of abuse, child prostitution, are all much higher among Aboriginal people
than in any other sector of Canadian society, whereas educational attainment, health
standards, housing conditions, family income, access to economic opportunity and to
social services are generally lower.10
The Special Rapporteur also observed that the “unacceptable gaps” between Indigenous
peoples and the rest of the population persist despite “an impressive number of programmes
and projects and considerable financial resources.”11 These sentiments were also reflected
by the Committee on Economic, Social and Cultural Rights (CESCR) when it reviewed Canada
in 2006.12 A recent federal government analysis found not only a significant gap between
Indigenous and non-Indigenous communities in four selected indicators of “community well-
being” – educational attainment, labour force participation, income, and housing – but also
concluded that “little or no progress” had been made toward narrowing this gap in the study
period of 2001-2006 and that a third of First Nations and Inuit communities had
9
UN Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Canada, UN Doc E/C.12/CAN/CO/4-E/C.12/CAN/CO/5 (22 May
2006); UN Human Rights Committee, Concluding observations of the Human Rights Committee:
Canada. UN Doc CCPR/C/CAN/CO/5 (20 April 2006); UN Committee on the Elimination of Racial
Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination:
Canada, UN Doc. A/57/18 (1 November 2002); UN Committee on the Elimination of Racial
Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination:
Canada, UN Doc. CERD/C/CAN/CO/18 (25 May 2007); UN Committee on the Rights of the Child,
Concluding Observations of the UN Committee on the Rights of the Child. Canada, UN Doc.
CRC/C/15/Add.21. (17 October 2003); UN Human Rights Council. Report of the Special Rapporteur on
adequate housing as a component of the right to an adequate standard of living, and on the right to non-
discrimination in this context, Miloon Kothari: Addendum: Mission to Canada (9 to 22 October 2007)
A/HRC/10/7/Add.3 (17 February 2009).
10
UN Commission on Human Rights. Human rights and indigenous issues: Report of the Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo
Stavenhagen, Addendum: Mission to Canada, UN Doc. E/CN.4/2005/88/Add.3 (2 December 2004), p.2.
11
UN Commission on Human Rights. Human rights and indigenous issues: Report of the Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo
Stavenhagen, Addendum: Mission to Canada, UN Doc. E/CN.4/2005/88/Add.3 (2 December 2004), p.2.
12
UN Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee
on Economic, Social and Cultural Rights: Canada, UN E/C.12/CAN/CO/4-E/C.12/CAN/CO/5 (22 May
2006), para.17; and E/C.12/1/Add.31 (10 December 1998), para. 17.
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Amnesty International briefing on Canada
experienced a decline in the selected indicators.13 The Auditor General of Canada recently
commented on both “a lack of progress in improving the lives and well-being” of people
living in First Nations communities and the fact that services available in First Nations
communities “are often not comparable to those provided [in primarily non-Indigenous
communities] by provinces and municipalities.”14
In this submission, Amnesty International highlights six areas where Canada has failed to
work collaboratively with Indigenous peoples to ensure their full and equitable enjoyment of
internationally recognized human rights or, through its actions and policies, has contributed
to the current inequalities. The six areas of concern are:
a. Canada’s continued resistance to the full implementation of the UN Declaration on the
Rights of Indigenous Peoples;
b. the failure to respect and protect Indigenous peoples’ land rights;
c. discrimination in the delivery of government services;
d. the failure to ensure appropriate police response to Indigenous land rights protests;
e. the failure to develop a comprehensive response to the high levels of violence facing
Indigenous women; and
f. the impact of Canadian trade policy and the overseas operations of Canadian companies
on the rights of Indigenous peoples in other countries.
A. IMPLEMENTATION OF THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS
PEOPLES
While welcoming the fact that Canada officially endorsed the UN Declaration on the Rights of
Indigenous Peoples (the Declaration) in November 2010, Amnesty International remains
concerned both by the absence of a plan of action for its implementation and by continued
government statements denying responsibility to ensure that policies and legislation live up
to the minimum standards set out in this instrument. New guidelines for consultation with
Indigenous peoples issued by the federal government in March 2011, not only fail to
incorporate the Declaration’s numerous relevant provisions on consultation and Indigenous
peoples’ right to participate in decision making, these provisions are not incorporated into the
government guidelines. In addition, these guidelines assert that Canada “has concerns with
some of the principles in the Declaration” including the right of free, prior and informed
consent and that the Declaration “does not alter” Canada's legal duties in respect to
13
Indian and Northern Affairs Canada, Strategic Research and Analysis Directorate, First Nation and
Inuit Community Well-Being: Describing Historical Trends (1981-2006) (April 2010).
14
Auditor General of Canada, 2011 June Status Report, available at: http://www.oag-
bvg.gc.ca/internet/English/parl_oag_201106_04_e_35372.html.
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Amnesty International briefing on Canada
consultation with Indigenous peoples.15
While no human rights declaration has the power to “alter” domestic laws, human rights
declarations are intended as a source of interpretation of national laws and legal
responsibilities and may reflect legal obligations already established in international law. The
provisions of the Declaration reflect international human rights norms and many mirror
protections already afforded under binding human rights treaties such as this Convention and
their interpretation by various treaty bodies. For example, the right of free, prior and informed
consent, which Canada specifically objects to in its guidelines, was affirmed in this
Committee’s General Recommendation XXIII. In addition, implementation of the
Declaration’s provisions provides a means to safeguard and fulfill a wide range of human
rights, including rights to self-determination, lands and culture, that are well-established in
international law and for which, because of a history of their violation in respect to
Indigenous peoples in Canada, it is appropriate to seek additional protection through the
application of international norms. Amnesty International agrees with the observation of the
UN Special Rapporteur on the rights of indigenous peoples that:
[T]he significance of the Declaration is not to be diminished by assertions of its
technical status as a resolution that in itself has a non-legally binding character.
Implementation of the Declaration should be regarded as a political, moral and, yes,
legal imperative without qualification.16
RECOMMENDATION:
Canada should, in collaboration with Indigenous peoples’ organizations, develop a plan of
action for implementation of the Declaration, including the provisions on free, prior and
informed consent. The government should report regularly to Parliament on the progress
made in fulfilment of this plan of action.
B. FAILURE TO RESPECT AND PROTECT INDIGENOUS PEOPLES’ LAND AND
RESOURCE RIGHTS
The lands currently protected for the use and benefit of Indigenous peoples are only a small
fraction of their traditional territories. Historic treaties, which affirm a right to continued use
and benefit of these territories, have been widely violated. The result has been to erode
traditional sources of subsistence while denying many Indigenous peoples an alternative
economic base to maintain or rebuild their economies.
Government officials in Canada have acknowledged the severe economic and social impact of
15
Aboriginal Affairs and Northern Development Canada. Aboriginal Consultation and Accommodation -
Updated Guidelines for Federal Officials to Fulfil the Duty to Consult - March 2011, available at:
http://www.aadnc-aandc.gc.ca/eng/1100100014664.
16
Report to the United Nations General Assembly by the Special Rapporteur on the rights of Indigenous
peoples, James Anaya, UN Doc. A/65/264 (9 August 2010), para. 63.
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inadequately protected land rights. In a Government of British Columbia document entitled
“Why we are negotiating treaties”, the province states:
The quality of life for Aboriginal people is well below that of other British Columbians.
Aboriginal people generally die earlier, have poorer health, have lower education and
have significantly lower employment and income levels than other British Columbians.
This is directly related to the conditions that have evolved in Aboriginal communities,
largely as a result of unresolved land and title issues, and an increasing reliance on
federal support programs.17
Despite such acknowledgement, however, the available means to resolve land disputes and
restore and protect Indigenous lands have proven inadequate to the task of achieving redress
and fulfillment of Indigenous peoples’ human rights. Negotiation of Indigenous land claims
typically drag on for years or even decades, at enormous costs to the affected communities.
In British Columbia, 47 First Nations are currently in negotiations over land title and other
rights. The Auditor General estimated in 2006 that the majority of these negotiations had
stalled or were making little progress,18 a situation that continues today. First Nations have
incurred massive debts by borrowing from the government to cover the cost of participating in
the process. The Auditor General has estimated that some First Nations have already incurred
debts of between 44 and 64 per cent of the value of any financial settlement they are likely
to achieve.19
The failure to ensure fair and timely resolution of so many outstanding land and resource
disputes is largely a consequence of government negotiating policies that seek to minimize
any liability to the state and expressly constrain the recognition and protection of Aboriginal
rights and title. In the first modern treaties negotiated after 1973, the federal government
required the inclusion of clauses stating that all rights not specifically enumerated in the
agreement would be extinguished.20 The policy was later modified to offer other formulas that
still have the same effect; that entering into the agreement would mean giving up all future
opportunity to exercise inherent rights whose meaning and implications are still evolving in
domestic law.21 This approach has been widely condemned by UN treaty bodies,22 including
17
Province of British Colombia, Ministry of Aboriginal Relations and Reconciliation, available at:
http://www.gov.bc.ca/arr/treaty/negotiating/why.html.
18
Report of the Auditor General of Canada to the House of Commons. Chapter 7: Federal Participation in
the British Columbia Treaty Process—Indian and Northern Affairs Canada (November 2006).
19
Report of the Auditor General of Canada to the House of Commons. Chapter 7: Federal Participation in
the British Columbia Treaty Process—Indian and Northern Affairs Canada ( November 2006), para.
7.72.
20
For example, the James Bay and Northern Quebec Agreement of 1975 states, “The federal legislation
approving, giving effect to and declaring valid the Agreement shall extinguish all native claims, rights,
title and interests of all Indians and all Inuit in and to the Territory and the native claims, rights, title
and interests of the Inuit of Port Burwell in Canada, whatever they may be.” James Bay and Northern
Quebec Agreement (1975), para 2.6.
21
Canada’s Policy for the Settlement of Native Claims describes the objective of modern treaty
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Amnesty International briefing on Canada
this Committee, which called on Canada during its 2007 review to “ensure that the new
approaches taken to settle aboriginal land claims do not unduly restrict the progressive
development of aboriginal rights.”23
The available mechanisms to resolve land and resource disputes and the policies followed by
the Canadian government have in fact compounded and contributed to the continuing erosion
of Indigenous peoples’ rights. Negotiations over land rights typically drag for many years
owing to tactics adopted by government officials, dramatically increasing costs for Indigenous
peoples to participate. In large areas of Canada, particularly in British Columbia and in the
east, there are still no agreements between the state and Indigenous peoples to resolve
Indigenous peoples’ title to lands and resources. Where treaties exist, whether historic or
modern, there are widespread disputes over their implementation. In March 2011, a federal
government official told a parliamentary committee that there were 526 claims concerning
historic treaties currently being assessed or under negotiation and another 77 cases before
the courts.24
I. HUL’QUMI’NUM TREATY GROUP CASE
In 2009, the Inter-American Commission on Human Rights (IACHR) agreed to hear a human
rights complaint concerning the federal government’s refusal to negotiate fair redress for six
Vancouver Island First Nations who have been dispossessed of most of their traditional
territory without consent or compensation. The six First Nations of the Hul’qumi’num Treaty
Group (HTG) have been in negotiation with the federal and provincial governments since
1994 under the comprehensive claims process in British Columbia. Participation in this
process has already cost the First Nations (Canadian) $20 million for research and other
expenses, which will be deducted from any settlement.
The HTG alleges that Canada has violated international human rights norms by excluding
from negotiations any possible restoration of land now held by private land owners, or
adequate compensation for its loss, as well as by failing to protect Hul’qumi’num interests
while the dispute remains unresolved. In agreeing to hear the complaint, the Inter-American
Commission ruled that the available mechanisms to resolve this dispute in Canada, whether
through litigation or the comprehensive claims process, are too onerous and constrained in
negotiation as one of exchanging “undefined Aboriginal rights for a clearly defined package of rights and
benefits codified in constitutionally protected settlement agreements.” Department of Indian Affairs and
Northern Development, Federal Policy for the Settlement of Native Claims (Ottawa, 1993), p. i.
22
Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Canada, UN Doc. E/C.12/1/Add.31 (10 December 1998),
para.18. UN Human Rights Committee, Concluding observations of the Human Rights Committee:
Canada, UN Doc. CCPR/C/CAN/CO/5 (20 April 2006), para. 8.
23
UN Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee
on the Elimination of Racial Discrimination: Canada, UN Doc. CERD/C/CAN/CO/18 (25 May 2007), para.
22.
24
The Standing Committee on Aboriginal Affairs and Northern Development. Minutes of Proceedings (1
March 2010).
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their protection of human rights to live up to the standards of international justice.25
The failure to reach timely resolution of outstanding land disputes often has the consequence
of depriving Indigenous peoples of access to an adequate land base on which to sustain their
ways of life, pass traditions on to future generations, meet the immediate economic needs of
their communities and rebuild their economies. These harms are compounded by the failure
to provide effective interim protection for Indigenous land rights while disputes remain
unresolved.
Large scale resource development on Indigenous lands, such as mining, oil sands extractions,
oil and gas development and clear-cut logging, presents an inherent challenge to the integrity
of Indigenous peoples’ use of the land. Under international human rights standards,
Indigenous peoples have a right to free, prior and informed consent; i.e. to make their own
informed decision about whether such development should proceed. In practice, consultation
with Indigenous peoples typically occurs after the decision to prioritize extractive
development over other land uses has already taken place. Consequently consultation tends
to be confined to the mitigation of adverse project impacts rather than to the more
fundamental question of whether the project should proceed or whether the land should be
protected for other uses. Furthermore, governments in Canada typically rely on project
proponents, or on regulatory agencies with limited mandates in respect to Indigenous rights,
to carry out such consultations. Indigenous peoples who determine that a proposed project is
incompatible with their use of the land typically have little recourse to prevent it going ahead,
short of a lengthy legal battle that most are unable to afford.
II. TRANSCANADA PIPELINE
On 15 August 2008, this Committee wrote to the Government of Canada, under the Early
Warning Measures and Urgent Procedures, to express concern about the TransCanada
pipeline, a massive natural gas pipeline being built across the land of the Lubicon Cree in
northern Alberta. The Committee questioned whether the provincial government “may
legitimately authorize the construction of a pipeline across Lubicon Territory without prior
Lubicon consent.”26
In October 2008, the Alberta Utilities Commission – a provincial government agency --
allowed construction of this pipeline to go ahead despite unresolved objections from the
Lubicon. In making its decision, the Commission refused to consider Lubicon concerns that
the project had proceeded to the approval stage without prior Lubicon consent, ruling that
the onus was on the Lubicon to demonstrate that the pipeline would cause harm to their use
of the land.27
25
Inter-American Commission on Human Rights (IACHR), Report No 105/09 on the admissibility of
Petition 592-07, Hul’qumi’num Treaty Group, Canada (October 30, 2009), paras. 37-9.
26
http://www2.ohchr.org/english/bodies/cerd/docs/Canada_letter150808.pdf
27
Alberta Utilities Commission, Decision on Prehearing Meeting, Decision 2008-035. April 24, 2008.
http://www.lubicon.ca/Im/080424auc_prehearing.pdf, and Alberta Utilities Commission, Decision on
Prehearing Meeting, Decision 2008-035. May 8, 2008. http://tao.ca/~fol/Im/080513auc_denial.pdf.
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Amnesty International briefing on Canada
The construction of the TransCanada pipeline is just one example of the ongoing failure to
recognize and protect Lubicon rights in respect to their traditional territory. Between 1979
and 2008, the Alberta government authorized the construction of more than 2680 wells and
more than 2366 kilometres of pipeline on Lubicon land.28 In a 1990 ruling, the CCPR
concluded that “historical inequities… and certain more recent developments [referring here
primarily to the scale and intensity of oil and gas development] threaten the way of life and
culture of the Lubicon Lake Band and… so long as they continue” constitute a violation of
the right to culture.29
In a 2010 letter to Amnesty International, the Alberta Minister for Aboriginal Relations stated
that “the province administers the lands in the Lubicon Lake region in the same manner as
all other areas of Alberta" and that “Alberta has an obligation to administer these lands for
the benefit of all Albertans.”30 This approach ignores the standards set out in General
Recommendation 23 and the Declaration, which both require the free, prior and informed
consent of Indigenous peoples where activities will affect their rights or interests.31 The
position taken by the Alberta government also ignores domestic legal standards, including the
fact that the Lubicon have never entered into any agreement to surrender Aboriginal title to
their traditional lands and that they unquestionably have ongoing land use rights as
guaranteed to all Indigenous people under Canadian constitutional law, such as hunting and
trapping rights.
In fact, the Lubicon have repeatedly sought a negotiated settlement of their land and
resource rights. The last negotiations broke down in 2003 because, in the Lubicon view, the
federal negotiators’ restricted mandate on key issues of redress and self-government was not
adequate to address the community’s needs and ensure fulfillment of their rights.32
On 29 April 2011, a leaking pipeline spilled an estimated 28,000 barrels – or 4.5 million
litres – of crude oil into wetlands on Lubicon lands. It was the largest oil spill in Alberta since
1975 and led to the temporary closure of the school in the Lubicon community of Little
Buffalo. The province allowed the pipeline to resume operation three months later. This
decision was taken without Lubcion consent and without any meaningful consultation. The
28
Amnesty International. From Homeland to Oil Sands: The Impact of Oil and Gas Development on the
Lubicon Cree of Canada. June 2010. AI Index: 20/002/2010.
29
United Nations Human Rights Committee Communication No. 167/1984: Canada. 10/05/90.
CCPR/C/38/D/167/1984.
30
Letter to Amnesty International, The Honourable Len Webber, Alberta Minister of Aboriginal Relations,
26 July 2010.
31
Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous
Peoples (1997), para. 4(d); UN Declaration on the rights of indigenous peoples, A/RES/61/295, article
19.
32
Lubicon Lake Indian Nation. Submission to the 36th Session of the United Nations Committee on
Economic, Social and Cultural Rights on the Occasion of the Review of Canada's 4th and 5th Periodic
Reports (1 May 2006), p. 4-8, available at. http://www2.ohchr.org/english/bodies/cescr/docs/info-
ngos/lubiconlakeindian.pdf.
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province ignored a Lubicon request for an independent assessment of the causes of the leak,
the likelihood of future leaks, and possible impact on the Lubicon.33
III. NORTHERN GATEWAY PIPELINE
In May 2010, a Canadian pipeline company, Enbridge, filed an application to build two
parallel pipelines connecting the Alberta oil sands to the British Colombia (BC) coast.34 One
of the pipelines is intended to carry a daily average of 525,000 barrels of bitumen, oil and
the industrial condensates needed to allow bitumen transport, while the other is intended to
bring a daily average of 193,000 barrels of these condensates to the oil sands. The project
proposal also includes the construction of new facilities near Kitimat, BC so that tankers can
export the oil and import the condensate.35
The proposal has been publicly opposed by the majority of Indigenous peoples whose
traditional lands would be crossed by the pipeline, as well as by First Nations concerned
about the potential impact on the downstream rivers and the coastal waters on which they
depend. In March 2010, nine First Nations in BC issued their own ban on tanker traffic in
the coastal waters of their territories.36 In December 2011, 61 First Nations with territory in
the largest watershed on the proposed pipeline route issued a declaration denouncing the
project as a "grave threat" to "our laws, traditions, values and our inherent rights as
Indigenous peoples."37
The proposal is now before a government-appointed review panel with the power to make
non-binding recommendations on whether the government should or should not approve the
project. On January 9, the day before the public hearings began, the federal Minister of
Natural Resources issued an open letter in which he defined the export of oil to Asian
markets as “an urgent matter of Canada’s national interest” and stated that “[w]e do not
want projects that are safe, generate thousands of new jobs and open up new export markets,
to die in the approval phase due to unnecessary delays.”38
33
CTV News. “Company able to operate again” (1 September 2011), available at:
http://edmonton.ctv.ca/servlet/an/local/CTVNews/20110901/edm_rainbow_110901/20110901/
34
Enbridge Northern Gateway LP. Enbridge Northern Gateway Project Sec 52 Application. Volume 1:
Overview and General Information (May 2010).
35
Enbridge Northern Gateway LP. Enbridge Northern Gateway Project Sec 52 Application. Volume 1:
Overview and General Information (May 2010), p. 1.
36
Coastal First Nations, Coastal First Nations Declaration (23 March 2010), available at:
http://dogwoodinitiative.org/no-tankers/downloadable-files/cfn-declaration-with-release-and-
backgrounder/view
37
Save the Fraser Gathering of Nations. Save the Fraser Declaration (November 2011), available at:
http://www.savethefraser.ca/.
38
Natural Resources Canada. An open letter from the Honourable Joe Oliver, Minister of Natural
Resources, on Canada’s commitment to diversify our energy markets and the need to further streamline
the regulatory process in order to advance Canada’s national economic interest (9 January 2012),
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Amnesty International briefing on Canada
The Minister’s statement prompted First Nations organizations in BC to question the
legitimacy of the review process.39 In Amnesty International’s view, the nature and timing of
the Minister’s statement raises serious questions about whether the federal government has
already determined that the pipeline proposal will go ahead, despite the fact that affected
First Nations have expressly not given consent.
RECOMMENDATIONS:
(1) Canada should publicly acknowledge its obligation to ensure fair and timely settlement
of outstanding land and resource disputes in a manner consistent with international human
rights norms and standards.
(2) Canada should take immediate action to remove barriers to the fair, adequate and timely
resolution of outstanding land and resource disputes, including by reforming policies and
practices that are inconsistent with international human rights standards, such as arbitrary
limits on the negotiation of redress.
(3) Canada should enact laws and implement practices and policies that ensure that
approval of resource extraction activities is contingent on formal, rigorous and meaningful
consultation with Indigenous peoples and that development proceeds only with the free, prior
and informed consent of those Indigenous peoples whose rights are affected. Consistent with
international human rights standards, Indigenous peoples whose rights to lands and
resources are the subject of as yet unresolved disputes should receive the same protections.
C. DISCRIMINATION IN THE DELIVERY OF SERVICES (ARTICLES 2(A), 5(A),
(E)(IV))
I. CHILD PROTECTION
In a landmark case brought before the Canadian Human Rights Tribunal, the applicants - the
First Nations Child and Family Caring Society (FNCFCS) and the Assembly of First Nations
(AFN) - alleged that the federal government has discriminated against First Nations children
living in reserve communities by failing to provide adequate funding necessary to ensure
access to the same quality of child protection programs and services available to non-
Aboriginal children.
On a per child basis, federal funding for First Nations child and family services has fallen to
less than 80 per cent of the level provided by provincial and territorial governments for
services in predominantly non-Aboriginal communities.40 This is despite the higher costs of
available at: http://www.nrcan.gc.ca/media-room/news-release/2012/1/3520.
39
British Columbia Assembly of First Nations, First Nations Summit, Union of British Columbia Indian
Chiefs. Federal Government Comments Damaging to the Impartiality of the Review Process (10 January
2010), available at: http://www.ubcic.bc.ca/News_Releases/UBCICNews01101202.html.
40
The First Nations Child and Family Caring Society of Canada. Wen:de ‐ We are coming to the light of
day. (October 2005), pp.14, 44; Department of Indian Affairs and Aboriginal Development and Assembly
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delivering such services in small and remote First Nations communities and the greater need
among many First Nations communities. As a consequence, the removal of children from
their families and communities, a measure intended strictly as a last resort, has become a
commonplace response when First Nations families on reserve face challenges in providing
adequate care to their children.
The federal government has acknowledged that Indigenous children are four to six times more
likely than non‐Indigenous children to be removed from their families for reasons such as
neglect.41 Additionally, a 2004 government briefing note obtained by the First Nations Child
and Family Caring Society notes that the circumstances for First Nations children are "dire"
and that "as a consequence of providing inadequate prevention resources, it is foreseeable
that civil proceedings could be initiated against the Government of Canada as a result of
neglect or abuse of children in care."42
The federal government strongly opposed the Tribunal holding hearings into the case brought
by the FNCFCS and the AFN. It argued firstly that the prohibition of discrimination in
providing government services under the Canadian Human Rights Act does not apply to the
funding decisions that determine the levels and quality of services that are available; and
secondly that services delivered to First Nations under federal jurisdiction should not be
compared to services delivered to the general population under provincial jurisdiction for the
purposes of determining whether discrimination has occurred. The case is now before the
Federal Court after the Tribunal rejected the case on the second of these two arguments. 43
The positions advanced by the Canadian government contravene Canada’s obligations under
international human rights standards which clearly do not allow for arbitrary distinctions
between funding services and service delivery or between federal and provincial
jurisdictions.44 Amnesty International is concerned that if Canada’s objections to the case are
upheld, it will create a large gap in protections afforded under the Canadian Human Rights
Act (CHRA) because similar arguments could be made in respect to virtually every aspect of
federal services to First Nations. The result would be to deny First Nations people in Canada
access to the protection of the CHRA on some of the most important aspects of government
decision-making and action.
As Canada indicates in its report to this Committee, an amendment to the CHRA came into
of First Nations, First Nations Child and Family Services Joint National Policy Review (June 2000).
41
Building a Brighter Future for Urban Aboriginal Children: Report of the Parliamentary Standing
Committee on Human Resources Development and the Status of Persons with Disabilities ( June 2003),
p.19.
42
First Nations Child and Family Caring Society and KAIROS; Canadian Ecumenical Justice Initiatives,
Honouring the Child, Shadow Report to the UN Committee on the Rights of the Child (October 2011).
43
First Nations Child and Family Caring Society and Attorney General of Canada, Federal Court File
Number T-630-11.
44
First Nations Child and Family Caring Society and Attorney General of Canada, Federal Court File
Number T-630-11.
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Amnesty International briefing on Canada
force in June 2008, eliminating a discriminatory exemption that had previously prevented the
Canadian Human Rights Commission examining complaints of discrimination in respect to
the Indian Act, which governs federal exercise of jurisdiction over First Nations reserves. A
number of UN treaty bodies and Special Procedures had called for such an amendment
including the Special Rapporteur on the rights of Indigenous peoples, the CCPR and the
CESCR.45 Amnesty International is concerned that the federal government has acted contrary
to the spirit of these recommendations, and its own amendment to the CHRA, through its
strenuous opposition to Indigenous peoples’ efforts to avail themselves of the remedies and
rights to redress available through the Canadian Human Rights Commission.
RECOMMENDATIONS:
(1) Canada should withdraw its objection to the claim of discrimination lodged by the First
Nations Child and Family Caring Society and the Assembly of First Nations.
(2) Canada should ensure that funding and other support to First Nations’ children’s
services is adequate to meet their needs.
(3) Canada should take immediate steps to ensure that in law and practice, there is no
discrimination or inequality in the provision of public services between Indigenous peoples
and the rest of the population.
II. SAFE DRINKING WATER
Similar gaps in the enjoyment of human rights persist in a number of other areas of federally-
funded services in Indigenous communities. A federal government audit published in 2011
concludes that 39 per cent of all water systems in First Nations communities have major
deficiencies that potentially threaten human health and the environment.46 Overall, the
review classified 73 per cent of drinking water systems and 65 per cent of waste water
systems in First Nations communities as either medium or high risk.47 The survey also found
that 1,880 homes have no water service while another 15,451 (or 13.5 per cent of First
45
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Rodolfo Stavenhagen, Addendum: Mission to Canada, E/CN.4/2005/88/Add.3, 2004,
p. 24; United Nations, Human Rights Committee, Consideration of Reports Submitted by States Parties
under Article 40 of the Covenant – Concluding observations of the Human Rights Committee: Canada,
CCPR/C/CAN/CO/5 (20 April 2006), para. 22; United Nations, Committee on Economic, Social and
Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the
Covenant – Concluding observations of the Committee on Economic, Social and Cultural Rights: Canada
(pdf, 41 pages), E/C.12/CAN/CO/5 (22 May 2006), para. 17, 45.
46
Neegan Burnside Ltd., National Assessment of First Nations Water and Wastewater Systems. National
Roll-Up Report. Department of Indian Affairs and Northern Development (April 2011), p.ii, available at:
.http://www.aadnc-aandc.gc.ca/eng/1313770257504.
47
Neegan Burnside Ltd., National Assessment of First Nations Water and Wastewater Systems. National
Roll-Up Report. Department of Indian Affairs and Northern Development (April 2011), p.ii, available at:
.http://www.aadnc-aandc.gc.ca/eng/1313770257504.
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Amnesty International briefing on Canada
Nations households), rely on trucked-in water.48
In 2006, an expert panel appointed by the federal government concluded that drinking water
problems in First Nations communities were primarily the result of the failure of the federal
government to provide the resources necessary “to ensure that the quality of First Nations
water and wastewater is at least as good as that in similar communities and that systems are
properly run and maintained.”49
While the federal government claims to have already made significant investment in First
Nations water quality, the federal government’s response to the 2011 audit states that plans
for investment in First Nations water systems from now until 2016 cover only 25 per cent of
the highest risk water systems.50
RECOMMENDATIONS:
(1) Canada should immediately adopt measures, especially the provision of adequate
resources, to ensure water and sanitation in First Nations communities meets the standards
enjoyed by other people in Canada, including urgent measures to address the needs of those
First Nations communities that have no potable water or sewage systems.
(2) Canada should ensure that any measures related to First Nations water and sanitation
are taken in collaboration with the affected peoples and are consistent with international
human rights standards.
D. POLICING AND INDIGENOUS PROTESTS (ARTICLE 5(B)(C)(D)(VIII)AND (D)(XI))
In September 1995, the Ontario Provincial Police (OPP) deployed a force of approximately
200 officers, including snipers to respond to the occupation of Ipperwash Provincial Park by
a small group of Indigenous protesters. The protest was meant to focus attention on the
longstanding failure of the federal and provincial governments to restore Indigenous lands
taken in the 1890s and 1930s. On the night of September 6, 1995, the situation escalated
when police suddenly moved against the protesters. One Indigenous man was allegedly badly
beaten by police and another, Dudley George, was fatally shot by a police sniper who was
48
Neegan Burnside Ltd., National Assessment of First Nations Water and Wastewater Systems. National
Roll-Up Report. Department of Indian Affairs and Northern Development (April 2011), p. i., available at:
http://www.aadnc-aandc.gc.ca/eng/1313770257504.
49
Harry Swain, Stan Louttit and Steve Hrudey, Report of the Expert Panel on Safe Drinking Water for
First Nations. Department of Indian Affairs and Northern Development (November 2006), p. 50,
available at: http://www.afn.ca/uploads/files/volume_1_e.pdf.
50
Aboriginal Affairs and Northern Development Canada, Fact Sheet - Risk Assessment of Water and
Wastewater Systems in First Nations Communities, available at http://www.ainc-
inac.gc.ca/enr/wtr/nawws/fsris-eng.asp.
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Amnesty International briefing on Canada
subsequently criminally charged and convicted.
After the tragic events at Ipperwash Provincial Park the OPP implemented a number of
reforms, including a new framework for responding to such protests. The Framework for
Police Preparedness for Aboriginal Critical Incidents, adopted by the OPP in 2000 and
updated in 2005, recognizes that Indigenous land protests involve a variety of rights issues
and affirms that “it is the role of the OPP and all of its employees to make every effort prior
to a critical incident to understand the issues and to protect the rights of all involved parties
throughout the cycle of conflict.”51 The stated purpose of the Framework includes promoting
and developing “strategies that minimize the use of force to the fullest extent possible.”52
In 2003, the Ontario provincial government instituted a public inquiry into the events at
Ipperwash, following calls for such an inquiry by the CCPR.53 The Inquiry report, released in
2007, points out that occupations such as the one that took place at Ipperwash, “occur when
members of an Aboriginal community believe that governments are not respecting their treaty
or Aboriginal rights, and that effective redress through political or legal means is not
available. It is typical of these events that governments have failed to respect the rights at
issue or to provide effective redress, for a very long time, and a deep sense of frustration has
built up within the Aboriginal community.”54
The Inquiry report called for the provincial government to adopt, “as soon as it is practical to
do so,” a province-wide “peacekeeping” policy based largely on the OPP Framework, in order
to “codify the lessons learned at Ipperwash and reassure both Aboriginal and non-Aboriginal
Ontarians that peacekeeping is the goal of both police and government in this province, that
treaty and Aboriginal rights will be respected, that negotiations will be attempted at every
reasonable opportunity, and that the use of force must be the last resort.”55
Despite a public commitment by the provincial government to fully implement the
recommendations of the Ipperwash Inquiry, little progress has been made in the nearly five
years since the Inquiry concluded. The province has yet to implement a provincial
peacekeeping policy and the OPP framework has not been subjected to an independent
review as called for by the Inquiry. The federal government, which chose not to participate in
the Inquiry, has also not taken up its recommendations.
Furthermore, a case study carried out by Amnesty International suggests that the OPP has
failed to fully implement its own framework for responding to Indigenous protests and that
the provincial government is not holding the OPP accountable to this framework.56 In
51
Ontario Provincial Police. Framework for Police Preparedness for Aboriginal Critical Incidents. p. 2.
52
Ontario Provincial Police. Framework for Police Preparedness for Aboriginal Critical Incidents. p. 2.
53
UN Human Rights Committee. Concluding observations of the Human Rights Committee: Canada. 7
April 1999. CCPR/C/79/Add.105
54
Province of Ontario, Report of the Ipperwash Inquiry, Vol. 2, p. 43.
55
Province of Ontario, Report of the Ipperwash Inquiry, Vol. 2, p. 216.
56
Amnesty International Canada. “I was never so frightened in my entire life”: Excessive and dangerous
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separate incidents in June 2007 and April 2008, hundreds of OPP officers were deployed to
surround and contain protesters from the Tyendinaga Mohawk Territory in Ontario. These
forces included members of the Tactics and Rescue Unit, commonly known as the sniper
squad and whose members are heavily armed. No credible evidence has ever been brought
forward to show that the protesters were armed or represented a significant threat to public
safety.57 However, in an incident in April 2008 the situation escalated to the point that OPP
officers, in response to a false report that a rifle had been sighted, drew handguns and
levelled high powered assault rifles at unarmed activists and bystanders.58 The provincial
government has refused calls by Amnesty International for an independent probe of these
incidents and the OPP has refused to confirm whether it has even conducted an internal
review.
RECOMMENDATIONS:
(1) Canada should ensure that all jurisdictions in the country adopt and implement binding
policies publicly affirming that in responding to Indigenous occupations and protests,
particularly within the context of land related resources disputes, security forces use lethal
force only as a last resort and only when strictly necessary to protect life or ensuring the
safety of others.
(2) Canada should press the government of the Province of Ontario to implement fully the
recommendations of the Ipperwash Inquiry, including an independent review of the
Framework for Police Preparedness for Aboriginal Critical Incidents, and conduct a specific
probe into the OPP handling of incidents at Tyendinaga.
E. VIOLENCE AGAINST INDIGENOUS WOMEN AND GIRLS (GENERAL
RECOMMENDATION 25; ARTICLES 2(A), 5(A), (B), (E)(IV) AND 6)
Over the past seven years, Amnesty International has been raising concerns with the
Government of Canada about the high rates of violence faced by Indigenous women and girls
in Canada and their lack of access to justice.59 Police in Canada do not consistently record or
report whether the victims of violent crime are Indigenous. As a consequence there are no
police response during Mohawk land rights protests on the Culbertson Tract (May 2011). Available at:
http://www.amnesty.ca/files/canada-mohawk-land-rights.pdf.
57
Amnesty International Canada. “I was never so frightened in my entire life”: Excessive and dangerous
police response during Mohawk land rights protests on the Culbertson Tract (May 2011), available at:
http://www.amnesty.ca/files/canada-mohawk-land-rights.pdf.
58
Amnesty International Canada. “I was never so frightened in my entire life”: Excessive and dangerous
police response during Mohawk land rights protests on the Culbertson Tract (May 2011), available at:
http://www.amnesty.ca/files/canada-mohawk-land-rights.pdf.
59
Amnesty International, Canada: Stolen Sisters: A Human Rights Response to Discrimination and
Violence against Indigenous Women in Canada, 3 October 2004 (AMR 20/003/2004).
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